"Preserving Judicial History"

by the

Honorable Robert M. Bell
Chief Judge, Maryland Court of Appeals &
Chairman, Maryland Hall of Records Commission

Court and Legal History Network Affinity Luncheon
American Association for State and Local History
Annual Meeting
Baltimore, Maryland
October 2, 1999

(see accompanying  handout)

Mr. Williams, Ms. Peters, ladies and gentleman,

It is a pleasure for me to be with you this afternoon to talk briefly about the importance of preserving and making accessible judicial history.

One of the best ways in which we can serve justice in this country is to make better known the history of how, since the earliest days of settlement, our judicial system has contributed to the process of making America a better place to live for all Americans.  To do so effectively and to encourage a better appreciation of the judiciary's and the legal system's importance to what our world is and what  it can be, every effort must be made to preserve and make accessible the records upon which that history is based.

Some recent publications by working judges in Maryland, such as Jim Schneider's A Century of Striving For Justice, The Maryland State Bar Association, 1896-1996" (1996), and Judge John Carroll Byrnes' edition of Histories of the Bench & Bar of Baltimore City (1997), are excellent  examples of how members of the judiciary itself are helping to promote appreciation of the history of our legal system.

Indeed in Baltimore City there is a Baltimore Courthouse and Law Museum Foundation that principally through volunteers maintains exhibits in the restored Orphans Court chamber in the Baltimore City Court house, in addition to sponsoring publications like that of Judge Byrnes, copies of which the Foundation has provided for each of you here today.    In Anne Arundel County, the renovation and expansion of the 1824 Court House has resulted in the preservation of an 1890s court room that will be used to introduce school groups to the history of the judicial system through living history presentations of significant court cases and exhibits.

It is my privilege to serve as the Chief Judge of the highest court in Maryland which too has a long and distinguished history of members active in the preservation and promotion of judicial history.  Our most recent addition to the court, Judge Harrell, along with his colleague Judge Wilner, their former colleague and now Federal Judge Diana G. Motz, Assistant Attorney General Robert Zarnoch, and other distinguished members of the bench and bar produced a play of six significant Maryland Appellate cases which is now available on line through the Maryland State Archives web site and in a CD edition (see handout).

Because the play and the documents that went into its creation are available on the web here
along with other documents pertinent to Maryland legal history, today I will take you only as far as the table of contents in your  handout, which on the web and on CD in turn leads you to all of the known documentary records relating to the cases selected in full electronic facsimile.

I say known, because the historical record upon which our understanding of these cases is based is still unfolding and must be considered a work in progress.   Just this week, for example, one of the co-chairmen of the Joint Budget and Audit Committee of the Maryland Legislature, Delegate Rosenberg, contributed his research on Donald Gaines Murray to the State Archives which in turn will added to the on-line version of the Murray documents in one of  these six cases.

With such a comprehensive record available it is easy to think of the ways it can be used in and out of the classroom.  Imagine, for example, what a high school class could do with any one of the six cases in a mock trial of their own design held in the splendid newly preserved 1890s courtroom of the Anne Arundel County Court which is within easy walking distance of the historic Maryland State House and not far from  the present Court of Appeals building.  What a significant exercise in public history and civic training that could be.

Preserving and making accessible judicial history is a two-fold task.  We need to be certain that we explain well the value of the judicial record to ensure that there will be a deeply imbedded cultural rationale for its preservation.  No one understood this better than a predecessor of mine, former Chief Judge Carroll T. Bond, whose artful opinion in the Donald Gaines Murray Case permitted the integration of the University of Maryland Law School within the then Supreme Court standard of Plessy v. Ferguson, by arguing that in the absence of separate but equal facilities, the school had to admit Murray.  I suspect that most of you are aware of the prestigious series of American Legal Records that the American Historical Association began in 1933 with income from the Littleon-Griswold Fund established in 1927 by Mrs. Frank T. Griswold in memory of William E. Littleton and Frank Tracy Griswold.  The Committee administering that fund was most distinguished.  It consisted of such well known legal scholars as Evarts B. Greene, Charles McLean Andrews, John Dickinson, future justice Felix Frankfurter, Richard B. Morris, and Carroll T. Bond.  The very first publication in the series was the Proceedings of the Maryland Court of Appeals, 1695-1729, edited and introduced by Judge Bond and Professor Richard B. Morris.

In his foreword to the volume, Professor Greene explains its purpose:

the common interest of jurists and historians in the study of American legal history has long been neglected; but during the past few years there has become a fuller appreciation of what may and should be accomplished through the cooperation of these two groups of scholars. ...
Unfortunately the judicial records and collateral material, without which [the evolution of the American system of justice] cannot be accurately traced, have, for the most part remained inaccessible and the decisions of our nineteenth-century courts often show serious misunderstanding of early American practice.  The first step to the correction of such misunderstanding must be to rescue from the obscurity of state archives and other depositories the manuscript records of the more important colonial courts, especially those of last resort. ...
this committee, representing the legal, as well as the historical, profession, agreed after extended discussion to inaugurate a series of volumes hitherto unpublished sources for American Legal history, each volume to include suitable editorial matter intended to clarify the text and to suggest its bearing upon the development of political, economic, and social, as well as strictly legal, institutions. ...
As Judge Bond points out in his introduction,
The number of judicial records left by the early Maryland colonists, and the amount of judicial business recorded in them, may surprise those who suppose that pioneers and frontiersmen in all times and places tend to become independent of the law.  For it seems to be demonstrated that, removed as these people were form the environment of their civilization, and relaxed as that civilization must therefore have been, in some degree, they were nevertheless tenacious of regulation by law, and prone to litigation. ....
As a consequence [of the inaccessibility of the records]  studies of the early legal history of the province have thus far been restricted to a few sources of information, and can be hardly be said to have penetrated far beyond beginning points and outlines.  For prosecution of further study, the record here reproduced will be an especially helpful one, because it presents a view of proceedings in all the principal courts of the province, assize, county, provincial, and appellate. ....
The Proceeding of the Maryland Court of Appeals 1695-1729 as edited by Judge Bond and Professor Morris sets a high standard for its day of bringing the judicial record into easy reach of teachers and the interested public, and, in the context of the other volumes in this series and similar state projects greatly enhanced our understanding of the value of the legal record as a vital component of our history.  Ironically, however, there is another moral to the story of this volume to which we also must pay heed.  A book that was once readily accessible and in print, is now considered a rare item and virtually impossible to obtain.

To rectify this problem and to make such valuable editions of the judicial record searchable and accessible, the Maryland State Archives will be producing this volume of Court of Appeals records in electronic form on its web site as a new addition to the Maryland Legal History series of the Archives of Maryland (Online, see handout).  With help from the Maryland Information Technology Fund, the Maryland State Archives has created an electronic classroom in which the most important of our legal records from the earliest times will be made available as a permanent electronic archives, one of the first, if not the first electronic archives in the nation to be preserved live and in perpetuity.

If we cannot keep readily at hand and in print valuable historical works of interpretation and edited transcriptions, imagine the difficulty of permanently preserving the fragile electronic world of taped court proceedings, briefs, and decisions.   By demonstrating the viability of preserving the already identified valuable and important judicial records, along with the rich historical introductions and annotations by such scholars as Judge Bond and Professor Morris, the Archives sets a standard for access and preservation which all archives and court systems should follow.

Of course, in order to write and teach about the history of the Judiciary, by far the most daunting and yet crucial task before us is preserving and accessing the records themselves in cost effective ways that do not impede the course of justice itself.  What I mean by that is that the complexity and enormity of the judicial record itself can clog the system and get in the way of the efficient delivery of justice long before its historical relevance is understood, unless there is a creative and comprehensive archival program that weeds through the mass of data, once exclusively paper, and now increasingly electronic, preserving that which is of value and quickly disposing of that which is ephemeral and only administratively useful for a limited time.  Who makes those decisions and with what resources it is accomplished are critical questions that the Judiciary in Maryland has attempted to answer through strengthening a state-wide archival program that cuts across legislative, executive, and judicial  boundaries.

One of the ways we have been able to cooperatively approach the problem of modern electronic management and the effective preservation of the electronic record while improving the public services provided by the court system is through the use of a land records improvement fund created by the legislature.

In all courts, oversized materials present major problems of care and access.  In Maryland, for example, the courts are the court of record for all land transactions including vast quantities of surveying records known familiarly as 'plats.'   These records usually range in size from 18 by 24 inches to some that have been known to be as large as five feet wide and twelve feet long.  You have a photograph of one such example in your handout this morning showing the surveyor presenting it to the court for recordation.

Apart from the fact that such records take up a considerable amount of expensive storage space, and apart from the reality that every time one of these records is consulted it deteriorates further in the hands of those who retrieve it and those who use it, there is the further issue of how to make such vital land records easily and permanently accessible without escalating staff and maintenance costs.

Fortunately the emergence of the Internet and the web and the wisdom of the legislature in creating the land records improvement fund from a portion of all land record recordation fees has led to the implementation of a pilot project designed by the State Archives that brings all such recorded (and some unrecorded) oversized material easily to hand in high quality images exhaustively indexed.

The project is called 'Plato" for plats on line and is available on the Internet here (see handout).   To date Baltimore County only is on line, but two more counties are to follow this month with all counties on line (assuming the Land Records Improvement Fund is continued next session by the legislature) by the end of the year 2000.  Access will be free at the Archives and the Courthouse and by subscription to everyone else over the Internet with the proceeds going to maintaining and improving the electronic files.

What is unique about the program is its flexibility as a dynamic recordation and retrieval service that can be continuously improved by the Archives, the Clerks, and the Users themselves.  For example, the quality of the recorded copies of oversized materials varies considerably according to use and storage practices in each of the counties.  Often the record copy is supplemented by copies in better condition elsewhere, either made by the courts for reference purposes or for use by other agencies such as planning departments.  Even private surveyor's records at times prove vital to interpreting and enhancing the official record copy.  The surveyor shown in the photograph preserved his extensive files in a collection now at the Archives which will be linked to recorded copies of surveys he did.  In addition, historical county maps and the original land surveys recorded with the colonial and state Land Office will be scanned and linked to the county court records.  Finally, when the public has questions about the records or a complaint about legibility, a simple email form is provided that will trigger a response and the posting of better images (if they exist within 24 to 72 hours).  I have provided you with some examples from the system (see handout).

The plats have been reduced to letter size for printing, but can be produced to scale, as has been done with a portion of the rare historical map for Queen Anne's county in your handout, depicting the 1790s court house still in use today.

As we attempt to properly care for the historical records of the judiciary and the whole of our legal system, perhaps another valuable lesson we must learn from the current world is the need to be both interesting (if not always clearly relevant to all audiences at all times) and brief.  I have learned that the hard way in my mandatory appearances before the legislature.  I doubt that we will have any difficulty in making judicial and legal history interesting to almost any audience.  Too much of the reality of life is packed into our court records.  Brevity is another matter.  Judges and Lawyers (even Archivists) are not noted for their brevity and so let me defy tradition with this concluding thought:

If we do not find ways in which to engage the general public in a better understanding of what we do and have done as judges and as participants in the legal process, we will be contributing materially to the weakening of the whole system of American Government, not just the Judiciary.  Clearly just with what we already know about our records and our past, the preserving and telling of our history holds great promise.  It is simply up to all of us who care to make it happen.

©Maryland State Archives